Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fourth Chamber)

11 September 2003 (1)

(Failure of a Member State to fulfil obligations - Article 5 of Directive 79/923/EEC - Quality of shellfish waters - Pollution-reduction programme)

In Case C-67/02,

Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Ireland, represented by D. O'Hagan, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by not adopting programmes for all its designated shellfish waters in accordance with Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters (OJ 1979 L 281, p. 47), Ireland has failed to fulfil its obligations under that directive,

THE COURT (Fourth Chamber),

composed of: C.W.A. Timmermans, President of the Chamber, A. La Pergola (Rapporteur) and S. von Bahr, Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. By an application lodged at the Court Registry on 28 February 2002, the Commission of the European Communities brought an action pursuant to Article 226 EC for a declaration that, by not adopting programmes for all of its designated shellfish waters in accordance with Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters (OJ 1979 L 281, p. 47, hereinafter the Directive), Ireland has failed to fulfil its obligations under the Directive.

2. Article 4 of the Directive provides:

   1. Member States shall, initially within a two-year period following the notification of this directive, designate shellfish waters.

   2. Member States may subsequently make additional designations.

   3. Member States may revise the designation of certain waters owing in particular to factors unforeseen at the time of designation, taking into account the principle set out in Article 8.

3. Article 5 of the Directive provides:

   Member States shall establish programmes in order to reduce pollution and to ensure that designated waters conform, within six years following designation in accordance with Article 4, to both the values set by the Member States in accordance with Article 3 and the comments contained in Columns G and I of the Annex.

4. Ireland transposed the Directive by adopting the Quality of Shellfish Waters Regulations of 18 July 1994 (SI No 200 of 1994). By the same regulations, it also made the designations required under Article 4 of the Directive. It follows that Ireland had to establish the programmes in accordance with Article 5 of the Directive within a period of six years from that date.

5. In accordance with the procedure laid down in the first paragraph of Article 226 EC, the Commission, having given Ireland formal notice to submit its observations, sent a reasoned opinion to it by letter of 25 July 2001, inviting it to establish the pollution-reduction programmes required by Article 5 of the Directive within two months of notification of the opinion. Since the information communicated to the Commission by the Irish authorities in response to that opinion showed that Ireland had not adopted all the measures necessary to comply with the provisions of the Directive in relation to the establishment of the programmes required by the said Article 5, the Commission decided to bring this action.

6. In its application, the Commission claims that, by not adopting programmes for all its designated shellfish waters, Ireland has failed to fulfil its obligations under Article 5 of the Directive.

7. In its defence, the Irish Government does not contest the alleged infringement. It draws attention, however, to the draft programmes which the competent authorities have drawn up and requests the Court to suspend the proceedings in order to enable the Commission to consider them.

8. In its reply, the Commission, as well as maintaining its action against Ireland, asserts that, in any event, those draft programmes do not comply with the requirements of the Directive.

9. In its rejoinder, Ireland does not dispute that it has not established any programme under Article 5 of the Directive. It states its intention to review the draft programmes in accordance with the concerns expressed by the Commission.

10. In that regard, it must be pointed out that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-177/01 Commission v France [2002] ECR I-5137, paragraph 13).

11. It is clear from the foregoing that no pollution-reduction programme for the purpose of Article 5 of the Directive was established by Ireland within the time-limit laid down by the reasoned opinion.

12. In those circumstances, the action brought by the Commission must be considered to be well founded.

13. Consequently, it must be declared that, by not adopting programmes for all its designated shellfish waters in accordance with Article 5 of the Directive, Ireland has failed to fulfil its obligations thereunder.

    Costs

14. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission applied for costs and Ireland has been unsuccessful, the latter must be ordered to pay the costs of the proceedings.

On those grounds,

THE COURT (Fourth Chamber)

hereby:

1. Declares that, by not adopting programmes for all its designated shellfish waters in accordance with Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters, Ireland has failed to fulfil its obligations thereunder;

2. Orders Ireland to pay the costs.

Timmermans La Pergola von Bahr

Delivered in open court in Luxembourg on 11 September 2003.

R. Grass C.W.A. Timmermans

Registrar President of the Fourth Chamber

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1: Language of the case: English.